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Bill of Right in Action Spring 1999 (15:2)
Codes
World History: The Code Napoleon U.S. Government: The
Death Penalty and Human Rights: U.S. History: The Southern “Black Codes” of 1865-66
This issue of the Bill of Rights in Action is made possible by a generous grant from the W.M. Keck Foundation. Napoleon Bonaparte created the first modern code of laws. The Code Napoleon unified French law and became the model for legal systems in most other nations in the world. Napoleon rose to prominence during the French Revolution. As a military officer, he drove the British from Toulon in southern France. Promoted to general, he crushed an attempt to restore the monarchy and led the French army to victories in Italy and Egypt. A military hero to the French people, he seized control of the French government in 1799 with two allies. He immediately ordered the drafting of a new constitution. This document guaranteed that all adult males could vote, but it did not provide any bill of rights. “What the French people want,” said Napoleon, “is equality, not liberty.” The Constitution of 1799 also created a complicated form of government called the Consulate. But Napoleon, as “First Consul,” held most of the power. Tired of revolutionary chaos and war, the French people overwhelmingly voted to approve the new constitution, which promised stability if not freedom. Napoleon quickly set to work taking control of the country by appointing cabinet ministers, provincial governors and councils, police commissioners, mayors, and judges—all loyal to him. To his credit, Napoleon selected appointees who generally proved to be efficient and honest. Napoleon also established France’s first public education system and financed many public-works projects including the beautification of Paris. To end a violent conflict with the Roman Catholic Church brought on by the revolution, Napoleon negotiated a pact with the pope. The church turned its lands over to the state. In return, the government paid the salaries of Catholic priests (France was mostly a Catholic country). In 1800, Napoleon led his army over the Alps to defeat the Austrians in Italy. A few months later, he reached agreement with Spain to return Louisiana to France. In 1802, a vote of the people made him “First Consul for Life.” That same year, he signed peace treaties with several countries. The short period of peace that followed allowed Napoleon to complete his plans for unifying the French nation. This included writing a new code of laws to apply equally to all French citizens regardless of class. The Civil Code By Napoleon’s time, a confusion of customary, feudal, royal, revolutionary, church, and Roman laws existed in France. Different legal systems controlled different parts of the country. The French writer Voltaire once complained that a man traveling across France would have to change laws as often as he changed horses. Determined to unify France into a strong modern nation, Napoleon pushed for a single set of written laws that applied to everyone. He appointed a commission to prepare a code of laws. Napoleon wanted this code to be clear, logical, and easily understood by all citizens. The commission, composed of Napoleon and legal experts from all parts of France, met over a period of several years. Enacted on March 21, 1804, the resulting Civil Code of France marked the first major revision and reorganization of laws since the Roman era. The Civil Code (renamed the Code Napoleon in 1807) addressed mainly matters relating to property and families. But these areas of law greatly affected people’s lives. The Civil Code writers tried to achieve a compromise between the past and the revolution. The Civil Code eliminated feudal and royal privileges in favor of all citizens’ equality before the law. It included some rights such as freedom of speech and worship along with public trial by jury. It allowed individuals to choose their own occupation. But it banned worker organizations, and the employer’s word was to be taken over that of his employee. Most of the 2,281 articles in the Civil Code dealt with the right of property. This was defined as “the right to enjoy and to dispose of one’s property in the most absolute fashion.” Since the Industrial Revolution had not yet taken hold in France, property mainly referred to land. Although the right to landed property was considered “absolute,” some limitations applied. For example, only the legitimate children of a landowner could inherit his land. Furthermore, the landowner’s children had to share equally in the inheritance. The Civil Code also adopted the old feudal law that a wife could not inherit her dead husband’s land because the “blood family” would then no longer own it. The Civil Code retained the revolution’s law that a civil authority must conduct marriages. (It did not recognize church marriages as legal.) It based many other family laws on traditional and even ancient Roman law. The father ruled his children. A father could veto his son’s marriage until age 26 and that of his daughter until 21. Fathers even had the right to imprison their children at will. Like other legal systems of the time, the Civil Code made the wife legally inferior to her husband: “The husband owes protection to his wife, and the wife owes obedience to her husband.” Without her husband’s permission, a wife could not conduct any business. Moreover, she could not make contracts. The Civil Code did provide for the idea of community property. This means that a married couple jointly owns all the wealth they accumulate during their marriage, and in case of divorce, they must divide it equally. But the code limited this progressive (although very old) idea. The husband alone legally controlled all family assets during the marriage, including any property his wife possessed before getting married. The Civil Code permitted divorce on the grounds of adultery, cruelty, criminal conviction, or the mutual agreement of the spouses and their parents. The revolution had introduced divorce for the first time into France, and the Catholic Church bitterly opposed it. The law of divorce favored the husband. He could get a divorce if his wife committed one act of adultery anywhere. A wife, however, could secure a divorce on grounds of adultery only if her husband committed the act within the family home. Between 1806 and 1810, Napoleon added a Code of Civil Procedure, Commercial Code, Code of Criminal Procedure, and Penal Code to the ground-breaking Civil Code of 1804. Although they covered a lot, the laws themselves did not go into great detail. Under Napoleon’s system, courts must sometimes use reason and logic to interpret how laws apply to certain cases. But the courts’ decisions generally do not apply to future cases. This is quite unlike common-law systems. In common-law countries like Britain and the United States, court decisions can become precedents with the force of law. In France, the codes that lawmaking bodies enact are supreme. When the codes need amending, the legislature periodically updates them. For example, the French Parliament established legal equality between husband and wife in the Code Napoleon following World War II. The Legacy Napoleon made his Civil Code the law in territories he conquered, such as parts of Italy and Holland. After his death, the Code Napoleon inspired many other nations to adopt similar law codes. The Code Napoleon has even influenced the United States, a country steeped in the traditions of common law. In 1808, soon after President Thomas Jefferson purchased Louisiana from Napoleon, American lawmakers in the new territory wrote a code of laws largely taken from Napoleon’s Civil Code. This territorial code remains as the foundation of Louisiana state law today. The code’s influence is not limited to Louisiana. Legislators patterned the New York state civil and criminal codes, first completed in 1850, on the Code Napoleon. These codes served as models for similar codes in other states and in the federal government. The old common law was codified, placed in codes. After defeating Napoleon at Waterloo in 1815, the British imprisoned him on a remote island. Thinking about his career as a general and leader of France, Napoleon remarked: “My real glory is not the 40 battles I won—for my defeat at Waterloo will destroy the memory of those victories. . . . What nothing will destroy, what will live forever, is my Civil Code.” Now approaching its 200th anniversary, the Code Napoleon continues to influence the lives of ordinary people in nearly all parts of the world. Napoleon was right. His most lasting legacy did not turn out to be his military conquests, but rather his foresight in realizing the unifying effect of a code of laws applying to all. For Discussion and Writing 1. Why did Napoleon believe a new code of laws
2. What features of the Code Napoleon do you agree
3. What are some important differences between
code
For Further Information French Revolution The French Revolution Home Page—Links on the French Revolution French Revolution 1789-1793 (moderate phase)—By a group of Modern European History students at Woodberry Forest School. Sites Devoted to Napoleon Institute on Napoleon and the French Revolution at Florida State University Napoleon Series a web site, or e-magazine, dedicated to Napoleon Bonaparte and his times. Encyclopedia Entries on Napoleon Biographies of Napoleon “Napoleon I: Emperor of France” From the Lucidcafe “Napoleon I” Author unknown “France During the French Revolution and Under Napoleon Bonaparte” An annotated chronology of civil and military events by Richard R. Orsinger. Napoleon and the Law “The Louisiana Civil Code: A Humanistic Approach” A Special Collection of the library at the Tulane Law School “Women
and the Code Napoléon” By Louise Hicks Click on “Readers’
Articles” in the left frame.
ACTIVITY: Advising Napoleon In this activity, groups will role play advisers to Napoleon, recommending final changes in the Code Napoleon. 1. Divide the class into five groups, assigning
each
2. Each group should (a) discuss its provision,
answering
3. When the groups have prepared their answers,
each group
4. After all the groups have reported, the teacher
as Napoleon
5. Hold a class discussion on whether this process,
with one
Questions 1. What are the advantages in keeping this Code
2. What are the disadvantages? 3. What changes might be made in this provision? 4. Should these changes be made? Why or why not? Code Provisions Provision #1: A father can veto his son’s marriage until age 26 and that of his daughter until age 21. Provision #2: There can be no worker organizations (unions). Provision #3: A married couple jointly owns all the wealth the two accumulate during their marriage, and in case of divorce, they must divide it equally. Provision #4: Divorce is allowed on the grounds of adultery, cruelty, criminal conviction, or the mutual agreement of the spouses and their parents. Provision #5: The husband alone controls all property during the marriage, including any property his wife possessed before getting married.
An overwhelming majority of Americans support the death penalty. The rest of the world, however, is slowly abandoning this ancient and ultimate punishment. Many countries have signed international agreements limiting and outlawing it. Under our federal system of government, every state, and the federal government, has its own set of criminal laws. This means that Congress and each state legislature must determine whether to enact capital punishment in its jurisdiction. Today, 38 states and the federal government have death-penalty laws. These laws apply only to first-degree murders, those done with deliberation and calculation. Only 12 states do not have capital punishment (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin). Current trends in the United States show strong support for capital punishment. In the last 20 years, support for the death penalty has never dropped below 57 percent in opinion polls. In a few polls, it has reached as high as 80 percent. During the 1990s, two states (New York and Kansas) decided to reinstate the death penalty, while no state abolished it. The death penalty has broad popular support. Any death-penalty law and case must meet constitutional standards. The Eighth Amendment to the U.S. Constitution forbids “cruel and unusual punishments.” The Fifth and 14th amendments require “due process of law.” The 14th Amendment also promises “equal protection of the laws.” The Sixth Amendment guarantees every defendant a fair trial. Any defendant can appeal a death sentence on these or other grounds. Appeals courts scrutinize death-penalty cases to make sure proper procedures and constitutional standards have been followed. The highest appeals court is the U.S. Supreme Court. This court has the final say on matters of U.S. constitutional law. It has made several landmark rulings on death-penalty cases. After rejecting other death-penalty laws as unconstitutional, the Supreme Court in 1976 in Gregg v. Georgia upheld one type of death-penalty law. This type requires a separate penalty trial after a guilty verdict. In the penalty trial, jurors consider mitigating factors that tend to excuse the behavior and aggravating factors that make the crime seem worse. A court can impose a death sentence only if the aggravating factors outweigh the mitigating factors. This means that only the most depraved murderers can be punished by death. The Supreme Court also considered challenges to the death penalty based on racial bias. One study presented to the court showed that in Georgia blacks who killed whites were sentenced to death seven times more often than whites who killed blacks. In 1987 in McCleskey v. Kemp, the Supreme Court ruled by a 5–4 vote that a mere statistical variation was not enough to invalidate the death penalty. To do that, the defendant would have to show that the state had somehow encouraged the result or that there was actual racial discrimination in a particular case. Since the defendant had offered no such proof, the court upheld the death penalty. In cases following McCleskey, the Supreme Court limited some death-penalty appeals. Opponents of capital punishment attacked these decisions, saying a shortened appeals process will make it more likely that an innocent person will be put to death. According to the Death Penalty Information Center, nearly 70 prisoners have been released from death rows since 1973 because DNA or other evidence proved that they were innocent. Supporters of capital punishment say that many prisoners have abused the appeals process, filing frivolous appeals simply to delay their execution. They point out that the appeals process averaged about 20 years. Even with the court limiting some appeals, they say the process is the most extensive and careful in the world, still lasting many years and costing millions of dollars. This process, they say, will ensure that no innocent person is executed. Today, the death penalty seems firmly entrenched in the United States. In the last 20 years, about 500 prisoners have been executed. In 1997, 74 executions took place. About 3,300 prisoners are currently on death rows, waiting out their appeals. But new challenges against the death penalty are arising. This time from the international community. Many nations are urging the United States to sign treaties against capital punishment. If the U.S. government signed any treaty banning capital punishment, it would bind every state. Article VI of the U.S. Constitution states that all ratified treaties “shall be the supreme Law of the Land; and the judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary Notwithstanding.” Supporters of the death penalty strongly oppose any treaty that forbids capital punishment. They view this penalty as a fitting one for murder and a sensible response to the still-high (though declining) murder rate in the United States. They see these treaties as threats to the democratic right of any state to impose capital punishment. International Trend Against Capital Punishment This strong support of the death penalty contrastswith international trends. The use of the death penalty is declining around the world. In 1981, 27 countries banned the death penalty. By 1998, this number had risen to 63. More than 40 other nations have severely restricted capital punishment: They either limit it to wartime crimes or have not used it for 10 years or more. The United States and 90 other countries currently still use the ultimate punishment. In 1997, governments in 40 countries executed slightly more than 2,000 prisoners, according to Amnesty International, an international human rights organization. More than 80 percent of these executions took place in only four countries: 1,644 in China, 143 in Iran, 122 in Saudi Arabia, and 74 in the United States. It is believed that Iraq executed hundreds of political prisoners, but these are unconfirmed. Also, worldwide in 1997, courts sentenced almost 4,000 persons to death. In May 1998, the British House of Commons voted to adopt the European Convention for the Protection of Human Rights and Fundamental Freedoms. Along with other things, this human rights declaration requires those who sign it to abolish the death penalty for all civilian crimes. Among the major European nations today, only Russia refuses to abolish its death penalty, mainly because of a severe crime problem that began after the breakup of the Soviet Union. Regional and international declarations against the death penalty obligate nations who agree to them. Thirty-two nations have signed and ratified one of these documents—the International Covenant on Civil and Political Rights. The covenant protects fundamental rights and specifically forbids the death penalty for juvenile offenders. In 1992, the U.S. Senate ratified this covenant, but only after reserving the right to execute juvenile offenders. In 1998, the U.N. Commission on Human Rights voted for capital punishment nations to suspend criminal executions as a first step in completely ending them. Although not legally binding, this call for the suspension of the death penalty reflected the view of most major nations in the world. Criticism of the U.S. The United States has long championed human rights. But in 1998, the U.N. Commission on Human Rights issued a stinging report. It criticized the United States for its recent increase in death sentences and executions. It especially condemned the execution of women, mentally impaired persons, and juvenile offenders. The report denounced the United States for signing the International Covenant on Civil and Political Rights and reserving the right to execute juvenile offenders. This reservation, it stated, violated the purpose of the treaty. Also, according to the report, capital punishment in the United States is applied unfairly to disproportionate numbers of minorities and the poor who often fail to receive adequate legal representation. U.S. officials quickly called the U.N. report inaccurate and unfair because it “fails to recognize properly our extensive safeguards and strict adherence to due process.” They argued that the Commission on Human Rights should spend more of its efforts investigating countries like China, which commonly violates basic due process of law and gives those sentenced to death little, if any, time to appeal. Juveniles and the Death Penalty The U.N. Convention on the Rights of the Child bars both capital punishment and life imprisonment without the possibility of release for crimes committed by juveniles under 18 years of age. Today, only six countries in the world carry out such sentences: Iran, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemen. In 1988 in Thompson v. Oklahoma, the U.S. Supreme Court stopped the execution of an offender who had committed a murder at age 15. The opinion of the court stated that it was unconstitutional to execute offenders for crimes committed when they were younger than 16. It declared that the death penalty “would offend civilized standards of decency” and thus would violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.” The court reasoned that juveniles under 16 generally lacked the experience, education, and intelligence to fully comprehend the consequences of their deadly acts. It said that they were more susceptible to impulse and peer influence than adults. Although five justices voted to stop the execution, only four justices agreed with the opinion of the court. This made Thompson a “plurality opinion,” which holds less weight than an opinion joined by five or more justices. The next year, the Supreme Court considered whether 16- and 17-year-olds could be executed. In two cases (Stanford v. Kentucky and Wilkins v. Missouri), the court voted 5–4 to uphold these executions. The court stated two tests for an unconstitutional punishment: Either the punishment had to have been considered “cruel and unusual” in 1789 when the Constitution was adopted, or it must violate the “evolving standards of decency that mark the progress of a maturing society.” The court concluded that executing 16- and 17-year-olds did not meet either test. The common law in 1789 treated 15-year-olds as adults. As for modern standards, the court looked to state law and federal laws. At that time, only 15 states rejected capital punishment for 16-year-olds and just 12 barred it for 17-year-olds. Seeing no national consensus against the death penalty, the court upheld it. About half the states currently allow capital punishment for murderers who kill at age 16 or 17. Since 1985, nine juvenile offenders have been executed in the United States. This amounts to more than half of these executions worldwide. Although all nine were 17-years-old at the time of their offenses, they were well into adulthood by the time they were executed. The case of Joseph Cannon is typical. At age 17, Cannon murdered Ann Walsh. At the sentencing hearing, his lawyer pointed out that the teenager had suffered severe head injuries after being hit by a car at age 4. Starting at age 7, he was frequently beaten and sexually abused by his stepfather. At 15, he was diagnosed as psychotic after attempting suicide. The prosecutor stressed the brutality of the crime. A single mother of eight, Walsh had taken in the homeless teenager. When she returned home one day, Cannon tried to rape her and shot her six times. The court found the aggravating factors outweighed the mitigating factors and sentenced him to die. Cannon remained on death row in a Texas prison for 21 years while appealing his case in state and federal courts. Capital punishment for those like Joseph Cannon who commit horrible crimes as juveniles provokes strong opposing opinions. Miriam Shehane, president of Victims of Crime and Leniency, argues, “If someone does an adult crime, they are acting as adults, and they have to take responsibility.” On the other side of the debate, the National Coalition to Abolish the Death Penalty contends, “When we as a society sentence a child to death . . . we surrender to the misguided notion that some children are beyond redemption.” In a 1998 interview on the eve of his execution, Joseph Cannon, then 38, said, “Yes, I was dangerous when I was a kid. I am ashamed the way I’m going to die. I’m gonna be hated.” For Discussion and Writing 1. Do you think that Joseph Cannon should have
2. Why do you think the United States, almost
alone
3. The appeals process in death penalty cases
sometimes
For Further Information Law Legal Information Institute at Cornel Justice
Center Web Site at University of Alaska, Anchorage
Media Talk of the Nation Government Capital
Punishment Statistics From the Bureau of Justice Statistics
Anti-Death Penalty Individuals and Organizations American Civil Liberties Union Campaign to End the Death Penalty Prison Activist Resource Center Death Penalty Net Developed and maintained by a network of national organizations opposed to capital punishment. “The
Case Against The Death Penalty” by Hugo Adam Bedau
Pro Death Penalty Individuals and Organizations Justice for All An organization that favors the death penalty. Wesley Lowe’s Pro Death Penalty Webpage “Speech
In Favor of Capital Punishment” by John Stuart Mill
ACTIVITY: U.N. Convention on the Rights of the Child The United States has signed, but the U.S. Senate has yet to ratify, the U.N. Convention on the Rights of the Child, which contains this language: Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age. . . . In this simulation, proponents and opponents will appear before a hearing of the Senate Foreign Relations Committee to argue for and against ratification of the convention. The committee will then vote whether to recommend ratification by the full Senate. If ratified, the convention would become the law throughout the United States. Divide the class into the five role groups listed below. Each group should use the article and other sources to prepare for its role in the simulated Senate Foreign Relations Committee hearing. U.N. Commission on Human Rights: The Convention should be ratified, thus enabling the United States to comply with international law, which condemns sentencing juveniles to death or life in prison without possibility of release. State of Texas: The convention should not be ratified since each state and its people should democratically decide whether or not to have capital punishment. National Coalition to Abolish the Death Penalty: The convention should be ratified since juvenile offenders are not as responsible as adults for their criminal acts. Victims of Crimes and Leniency: The convention should not be ratified because some juvenile offenders are so dangerous and lacking in remorse that they should be treated as adults. Senate Foreign Relations Committee: Members should prepare questions to ask the groups appearing before them. Then they will vote for or against recommending ratification of the convention to the full Senate. Finally, each member should explain his or her vote.
The end of the Civil War marked the end of slavery for 4 million black Southerners. But the war also left them landless and with little money to support themselves. White Southerners, seeking to control the freedmen (former slaves), devised special state law codes. Many Northerners saw these codes as blatant attempts to restore slavery. Five days after the Civil War ended, President Abraham Lincoln was shot. He died on April 15, 1865, and Vice President Andrew Johnson assumed the presidency. The task of reuniting the nation fell on his shoulders. A Southerner, Johnson favored readmitting the Southern states as quickly as possible into the Union. He appointed military governors who held complete power in the former Confederate states until new civilian governments could be organized. Little thought had been given to the needs of the newly emancipated slaves. Shortly before the end of the war, Congress created the Freedmen’s Bureau. It furnished food and medical aid to the former slaves. It also established schools for the freedmen. By 1870, a quarter million black children and adults attended more than 4,000 of these schools in the South. The Freedmen’s Bureau also helped the former slaves in the workplace. It tried to make sure that the former slaves received fair wages and freely chose their employers. The bureau created special courts to settle disputes between black workers and their white employers. It could also intervene in other cases that threatened the rights of freedmen. White Southerners resented being ruled by Union military governors and Freedmen’s Bureau officials. They sought to restore self-rule. During the summer and fall of 1865, most of the old Confederate states held constitutional conventions. President Johnson’s reconstruction plan permitted only white persons to vote for convention delegates or to participate in the framing of the new state governments. Not surprisingly, none of the state conventions considered extending the right to vote to the freedmen. South Carolina’s provisional governor declared at his state constitutional convention that “this is a white man’s government.” By the end of the year, most of the South had held elections under the new state constitutions. Often, ex-Confederate leaders won elections for state government offices and for U.S. Congress. The newly formed state legislatures quickly authorized many needed public projects and the taxes to pay for them. Among these projects was the creation, for the first time in the South, of free public education. But the public schools excluded black children. The state legislatures also began to pass laws limiting the freedom of the former slaves. These laws mirrored those of colonial times, which placed severe restrictions on both slaves and emancipated blacks. Neither of these groups could vote, serve on juries, travel freely, or work in occupations of their choice. Even their marriages were outside the law. The white legislators saw little reason not to continue the tradition of unequal treatment of black persons. An editorial in the Macon, Georgia, Daily Telegraph reflected the widely held opinion of the white South at this time: “There is such a radical difference in the mental and moral [nature] of the white and black race, that it would be impossible to secure order in a mixed community by the same [law].” White Southerners also feared that if freedmen did not work for white landowners, the agricultural economy of the South would collapse. During the last months of 1865, a rumor spread among freedmen: The federal government was going to grant “40 acres and a mule” to every ex-slave family on Christmas Day. Although the federal government had confiscated some Confederate lands and given them to freed slaves, it never planned to do this on a massive scale. Nonetheless, expecting their own plots of land, blacks in large numbers refused to sign work contracts with white landowners for the new year. At the same time, Southern whites passed around their own rumor that blacks would rise in rebellion when the free land failed to appear on Christmas Day. All these economic worries, prejudices, and fears helped produce the first Black Codes of 1865. These codes consisted of special laws that applied only to black persons. The first Black Code, enacted by Mississippi, proved harsh and vindictive. South Carolina followed with a code only slightly less harsh, but more comprehensive in regulating the lives of “persons of color.” The South Carolina Black Code South Carolina’s Black Code applied only to “persons of color,” defined as including anyone with more than one-eighth Negro blood. Its major features included the following: 1. Civil Rights The Southern Black Codes defined the rights of freedmen. They mainly restricted their rights. But the codes did grant black persons a few more civil rights than they possessed before the Civil War. South Carolina’s code declared that “persons of color” now had the right “to acquire, own and dispose of property; to make contracts; to enjoy the fruits of their labor; to sue and be sued; and to receive protection under the law in their persons and property.” Also, for the first time, the law recognized the marriages of black persons and the legitimacy of their children. But the law went on to state that, “Marriage between a white person and a person of color shall be illegal and void.” 2. Labor Contracts The South Carolina code included a contract form for black “servants” who agreed to work for white “masters.” The form required that the wages and the term of service be in writing. The contract had to be witnessed and then approved by a judge. Other provisions of the code listed the rights and obligations of the servant and master. Black servants had to reside on the employer’s property, remain quiet and orderly, work from sunup to sunset except on Sundays, and not leave the premises or receive visitors without the master’s permission. Masters could “moderately” whip servants under 18 to discipline them. Whipping older servants required a judge’s order. Time lost due to illness would be deducted from the servant’s wages. Servants who quit before the end date of their labor contract forfeited their wages and could be arrested and returned to their masters by a judge’s order. On the other hand, the law protected black servants from being forced to do “unreasonable” tasks. 3. Vagrancy All Southern Black Codes relied on vagrancy laws to pressure freedmen to sign labor contracts. South Carolina’s code did not limit these laws to unemployed persons, but included others such as peddlers and gamblers. The code provided that vagrants could be arrested and imprisoned at hard labor. But the county sheriff could “hire out” black vagrants to a white employer to work off their punishment. The courts customarily waived such punishment for white vagrants, allowing them to take an oath of poverty instead. 4. Apprenticeship Southern Black Codes provided another source of labor for white employers—black orphans and the children of vagrants or other destitute parents. The South Carolina code authorized courts to apprentice such black children, even against their will, to an employer until age 21 for males and 18 for females. Masters had the right to inflict moderate punishment on their apprentices and to recapture runaways. But the code also required masters to provide food and clothing to their apprentices, teach them a trade, and send them to school. 5. Courts, Crimes, and Punishments South Carolina’s Black Code established a racially separate court system for all civil and criminal cases that involved a black plaintiff or defendant. It allowed black witnesses to testify in court, but only in cases affecting “the person or property of a person of color.” Crimes that whites believed freedmen might commit, such as rebellion, arson, burglary, and assaulting a white woman, carried harsh penalties. Most of these crimes carried the death penalty for blacks, but not for whites. Punishments for minor offenses committed by blacks could result in “hiring out” or whipping, penalties rarely imposed on white lawbreakers. 6. Other Restrictions South Carolina’s code reflected the white obsession with controlling the former slaves. It banned black people from possessing most firearms, making or selling liquor, and coming into the state without first posting a bond for “good behavior.” The code made it illegal for them to sell any farm products without written permission from their white employer, supposedly to guard against stealing. Also, blacks could not practice any occupation, except farmer or servant under contract, without getting an annual license from a judge. Congressional Reconstruction The Mississippi and South Carolina Black Codes of 1865 provoked a storm of protest among many Northerners. They accused Southern whites of trying to restore slavery. Congress refused to seat Southerners elected under the new state constitutions. A special congressional committee investigated whether white Southern Reconstruction should be allowed to continue. In the South, the Mississippi and South Carolina Black Codes never went into effect. The Union military governors and the Freedmen’s Bureau immediately declared them invalid. Fearing that their self-rule was in jeopardy, the two states revised and moderated their codes. Christmas Day came without either the free land that freedmen had hoped for or the bloody rebellion that whites had dreaded. Instead, as the new year began, freedmen all over the South signed labor contracts and went back to work. Under the less tense conditions in 1866, most other former Confederate states wrote Black Codes that paid more attention to the legal equality of whites and blacks. But the belated efforts of the white Southerners to treat the freedmen more fairly under the law came too late. Along with the Black Codes, other events helped alter the course of Reconstruction: The 14th Amendment passed, and a new Congress hostile to the South was elected. This Congress took control of Reconstruction. When President Johnson vetoed its Reconstruction legislation, Congress overrode his vetoes. The battles with Johnson led ultimately in 1868 to his impeachment by the House, the first impeachment of a president in American history. (The Senate failed to convict him by one vote.) Under the direction of Congress, most Southern states held new constitutional conventions in 1867–68. This time the freedmen voted and participated. The resulting new state constitutions guaranteed the right of black adult males to vote and run for public office. For the first time, some blacks won election to Southern state legislatures and to Congress. By 1868, most states had repealed the remains of discriminatory Black Code laws. But Reconstruction did not last long. By 1877, it was dead. The North had lost interest in helping Southern blacks. Many factors had helped kill Reconstruction: economic troubles in the country, a more conservative consensus within the nation, a general feeling in the country that Reconstruction had failed, the resurgence of the Democratic party, and a growing respectability for racist attitudes. Southern states began trying to end black voting. By 1910, all Southern states had excluded blacks from voting. In the 1890s, Southern states enacted a new form of Black Codes, called “Jim Crow” laws. These laws made it illegal for blacks and whites to share public facilities. This meant that blacks and whites had to use separate schools, hospitals, libraries, restaurants, hotels, bathrooms, and drinking fountains. These laws stayed in effect until the 1950s and 1960s, when the civil rights movement launched an all-out campaign against them. Ultimately, the U.S. Supreme Court declared these laws unconstitutional, and the U.S. Congress passed Civil Rights legislation ensuring equal rights for all citizens. For Discussion and Writing 1. Why did white Southerners believe that a separate
2. Northerners protested that the Black Codes
of
3. Do you think that the U.S. government should
have
For Further Information
Black Codes “Black Codes Make Way for Jim Crow” from the World African Network Online “ACLU
Briefing Paper on Racial Justice” includes a section on the Black Codes.
Reconstruction Scartoons: Racial Satire and the Civil War is part of the Capitol Project of the American Studies Program at the University of Virginia. “The Freedmen’s Bureau” by W. E. B. Du Bois in The Atlantic Monthly 1901 “Reconstruction” by Frederick Douglass in The Atlantic Monthly 1866 Freedmen
and Southern Society Project
ACTIVITY: “Equal Protection of the Laws” The 14th Amendment, ratified in 1868, attempted to prevent discriminatory state laws such as those that made up much of the Southern Black Codes of 1865–66. Section 1 of the 14th Amendment reads, in part: All persons born or naturalized in the United States . . . are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens . . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In this activity, students will compare the requirements in Section 1 of the 14th Amendment with the laws included in the South Carolina Black Code of 1865. Form six groups, each to evaluate one area in
the South Carolina Black Code described in the article. Group members should
first read Section 1 of the 14th Amendment. Then they should decide which
parts of their Black Code area seemed to violate Section 1 provisions.
Finally, each group should report its conclusions to the rest of the class.
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